Employers Beware: Failure to consider JobKeeper may lead to unfair dismissal

An employee cannot bring an unfair dismissal in the case of a “genuine redundancy”. However, what if the employer has not considered the JobKeeper scheme where does that leave us following the case of Browne v MySharedServices Pty Ltd 2020 FWC.

Facts

An employee was retrenched by his employer by way of redundancy. The Fair Work Commission (FWC) must be satisfied that it was a genuine redundancy in that:

• The person’s employer no longer required the person’s job to be performed by anyone because of operational requirements of the employer’s enterprise;
• The employer has complied with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy; and
• It would not have been reasonable in the circumstances for the person to be redeployed within the employer’s enterprise or the enterprise of an associated entity of the employer.

Three employees were retrenched in around late March 2020 as a result of shutdowns ordered by the government in response to Covid19, one of the employees bought an unfair dismissal claim in the FWC.

Determination

The FWC accepted that, it no longer required the role performed by the applicant to be performed by anyone else because of changes in the operational requirement of the business. However, the FWC considered the failure to consult and its decision to employ two further sales consultants in May 2020 was telling that there may well of been opportunities for the applicant to be redeployed.

The FWC ruled that the employer was aware of the nature and operation of the JobKeeper scheme when the applicant was retrenched. Given the purpose of the Jobkeeper scheme was to ensure employees and their employer maintain a relationship, to minimise job losses and minimise redundancies. The employer should have used the scheme to maintain its employment of the applicant. On this basis, the FWC was satisfied that the dismissal was unjust and harsh.

ABOUT KARENA NICHOLLS:

Karena is a Partner at Coutts and is the Head of our Injury Compensation (with extensive knowledge in personal injury) and Employment Law teams. She is passionate and dedicated to helping her clients understand their rights and obligations and advising them on the best course of action to achieve their desired outcomes. It is her practical and client-orientated approach which has attributed to her authentic reputation positioning her as a highly regarded compensation and employment lawyer.